CHAPTER 91. RAIL FACILITIES

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TRANSPORTATION CODE

TITLE 5. RAILROADS

SUBTITLE A. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 91. RAIL FACILITIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 91.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Texas Transportation Commission.

(2) "Construction" includes design, planning, and preliminary

studies.

(3) "Department" means the Texas Department of Transportation.

(4) "Maintenance facility" includes:

(A) a workshop;

(B) a service, storage, security, or personnel facility; and

(5) "Operation" includes policing.

(6) "Rail facility" means real or personal property, or any

interest in that property, that is determined to be necessary or

convenient for the provision of a freight or passenger rail

facility or system, including commuter rail, intercity rail,

high-speed rail, and tri-track. The term includes all property

or interests necessary or convenient for the acquiring,

providing, using, or equipping of a rail facility or system,

including rights-of-way, trackwork, train controls, stations, and

maintenance facilities.

(7) "Revenue" includes a charge, toll, rent, payment, user fee,

franchise fee, license fee, fare, tariff, and other

consideration:

(A) received in return for the use of:

(i) a rail facility; or

(ii) a service offered in connection with the operation of a

rail facility; or

(B) resulting from a sale or conveyance of a rail facility.

(8) "Right-of-way" means a strip of land of a length and width

determined by the commission to be required, necessary, or

convenient for the provision of a rail facility or system and the

space over, under, or on the land where trackwork is to be

located.

(9) "Station" means a passenger or freight service building,

terminal, station, ticketing facility, waiting area, platform,

concession, elevator, escalator, facility for handicapped access,

access road, parking facility for passengers, baggage handling

facility, or local maintenance facility, together with any

interest in real property necessary or convenient for those

items.

(10) "Surplus revenue" means:

(A) revenue that exceeds the department's debt service

requirements, coverage requirements of any bond indenture, costs

of operation and maintenance, and cost of expansion or

improvement of a rail facility or system; and

(B) reserves and reserve funds maintained by the department

under this chapter.

(11) "Trackwork" means track, track beds, track bed preparation,

ties, rail fasteners, slabs, rails, emergency crossovers, setout

tracks, storage tracks, drains, fences, ballast, switches,

bridges, and structures.

(12) "Train controls" includes:

(A) signals, lights, and other signaling;

(B) interlocking equipment;

(D) braking systems;

(E) central traffic control facilities; and

(F) communication systems.

(13) "Tri-track" means a triangular monorail beam guideway:

(A) constructed at a grade above surface modes of

transportation;

(B) for use by dual-mode vehicles capable of using the guideway

or a highway; and

highways.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

281, Sec. 1.01, eff. June 14, 2005.

Sec. 91.002. PUBLIC PURPOSE. The following functions are public

and governmental functions, exercised for a public purpose, and

matters of public necessity:

(1) the acquisition, financing, construction, operation, and

maintenance of a rail facility under this chapter;

(2) the sale, lease, or license of a rail facility to a rail

operator and other public or private persons under this chapter;

and

(3) the exercise of any other power granted under this chapter

to the commission and the department.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.003. RULES. The commission may adopt rules and the

department may adopt procedures and prescribe forms necessary to

implement this chapter.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.004. GENERAL POWERS. (a) The department may:

(1) plan and make policies for the location, construction,

maintenance, and operation of a rail facility or system in this

state;

(2) acquire, finance, construct, maintain, and subject to

Section 91.005, operate a passenger or freight rail facility,

individually or as one or more systems;

(3) for the purpose of acquiring or financing a rail facility or

system, accept a grant or loan from a:

(A) department or agency of the United States;

(B) department, agency, or political subdivision of this state;

(4) contract with a public or private person to finance,

construct, maintain, or operate a rail facility under this

chapter; or

(5) perform any act necessary to the full exercise of the

department's powers under this chapter.

(b) Except as provided by Subsection (c), money appropriated or

allocated by the United States for the construction and

maintenance in this state of rail facilities owned by any public

or private entity shall be administered by the commission and may

be spent only under the supervision of the department.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch.

16, Sec. 1

allocated:

(1) to a transit authority described by Chapter 451, a

transportation authority described by Chapter 452 or 460, or a

transit department described by Chapter 453; or

(2) for use by:

(A) a port authority or navigation district created or operating

under Section 52, Article III, or Section 59, Article XVI, Texas

Constitution; or

(B) a district created under:

(i) Chapter 171;

(ii) Chapter 623, Acts of the 67th Legislature, Regular Session,

1981 (Article 6550c, Vernon's Texas Civil Statutes);

(iii) Article 6550c-1, Revised Statutes; or

(iv) Article 6550c-3, Revised Statutes.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch.

85, Sec. 4.02

Text of subsection effective on April 01, 2011

allocated:

(1) to a transit authority described by Chapter 451, a

transportation authority described by Chapter 452 or 460, or a

transit department described by Chapter 453; or

(2) for use by:

(A) a port authority or navigation district created or operating

under Section 52, Article III, or Section 59, Article XVI, Texas

Constitution; or

(B) a district created under Chapter 172 of this code or Chapter

623, Acts of the 67th Legislature, Regular Session, 1981 (former

Article 6550c, Vernon's Texas Civil Statutes).

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

281, Sec. 1.02, eff. June 14, 2005.

Acts 2009, 81st Leg., R.S., Ch.

16, Sec. 1, eff. May 12, 2009.

Acts 2009, 81st Leg., R.S., Ch.

85, Sec. 4.02, eff. April 1, 2011.

Sec. 91.005. RELIANCE ON PRIVATE ENTITIES. The department shall

contract with a private entity to operate a railroad using

facilities owned by the department and may not use department

employees to operate a railroad. The department may maintain a

railroad facility directly or through a private entity. The

department may not own rolling stock.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.006. COOPERATION OF STATE AGENCIES AND POLITICAL

SUBDIVISIONS. Within available resources, an agency or political

subdivision of this state shall cooperate with and assist the

department in exercising its powers and duties under this

chapter.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.007. NOTIFICATION OF INTENT TO ABANDON OR DISCONTINUE

SERVICE. On receipt of notice of intent to abandon or

discontinue rail service served under 49 C.F.R. Section 1152.20,

as amended, the department shall coordinate with the governing

body of a municipality, county, or rural rail transportation

district in which all or a segment of the line is located to

determine whether:

(1) the department should acquire the rail facility to which the

notice relates; or

(2) any other actions should be taken to provide for continued

rail transportation service.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

SUBCHAPTER B. ACQUISITION AND DEVELOPMENT OF RAIL FACILITIES

Sec. 91.031. ESTABLISHMENT OF RAIL SYSTEMS. (a) If the

commission determines that the provision of rail transportation

services would be most efficiently and economically met by

jointly operating two or more rail facilities as one operational

and financial enterprise, it may create a system composed of

those facilities.

(b) The commission may create more than one system and may

combine two or more systems into one system.

additional rail facilities as additions to and expansions of the

system if the commission determines that the facility would most

efficiently and economically be acquired and constructed if it

were a part of the system and that the addition will benefit the

system.

(d) The revenue of a system shall be accounted for separately

and may not be commingled with the revenue of a rail facility

that is not part of the system.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.032. ACQUISITION OF RAIL FACILITIES. (a) The

commission may authorize the department to acquire an existing

rail facility at a location and on a route the commission

determines to be feasible and viable for rail transportation

service.

(b) The department may enter into an agreement with the owner of

an operating railroad for the acquisition or use of a rail

facility on terms the department considers to be in the best

interest of the state.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.033. ENVIRONMENTAL REVIEW. (a) The department shall

conduct or approve all environmental evaluations or studies

required for the construction, maintenance, or operation of a

rail facility.

(b) The commission may adopt rules to allocate responsibility

for conducting an environmental evaluation or study or preparing

environmental documentation among entities involved in the

construction, maintenance, or operation of a rail facility under

this chapter.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.034. ENVIRONMENTAL MITIGATION. (a) The department may

acquire, maintain, hold, restore, enhance, develop, or redevelop

property for the purpose of mitigating a past, present, or future

adverse environmental effect arising from the construction,

maintenance, or operation of a rail facility without regard to

whether the need for mitigation has already been established for

a particular project.

(b) The department may contract with a governmental or private

entity to maintain, control, hold, restore, enhance, develop, or

redevelop property for the mitigation of a past, present, or

future adverse environmental effect arising from the

construction, maintenance, or operation of a rail facility

without regard to whether the need for mitigation has already

been established for a particular project.

department may pay an amount of money to an appropriate

governmental or private entity instead of acquiring or managing

property for the mitigation of a past, present, or future adverse

environmental effect arising from construction, maintenance, or

operation of a rail facility without regard to whether the need

for mitigation has already been established for a particular

project.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.035. USE OF FACILITIES BELONGING TO PUBLIC OR PRIVATE

ENTITY. (a) The department, for the purpose of acquiring,

constructing, maintaining, and operating freight or passenger

rail facilities and systems in this state, may:

(1) use a street, alley, road, highway, or other public way of a

municipality, county, or other political subdivision with the

consent of that political subdivision; and

(2) at the expense of the department, relocate, raise, reroute,

or change the grade of the construction of a street, alley,

highway, road, railroad, electric line and facility, telegraph

and telephone property and facility, pipeline and facility,

conduit and facility, and other properties, whether publicly or

privately owned, as necessary or useful in the construction,

maintenance, and operation of a rail facility or system.

(b) The department shall provide reasonable notice to the owner

of the applicable facility of the need for the alteration under

Subsection (a)(2) and allow that owner the opportunity to

complete the alteration.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.036. EXPENDITURE OF FUNDS. Subject to Section

91.071(b), the department may receive, accept, and expend funds

from this state, a federal agency, or other public or private

source for:

(1) rail planning;

(2) studies to determine the viability of a rail facility for

rail transportation service;

(3) studies to determine the necessity for the department's

acquisition or construction of a rail facility; and

(4) the acquisition, construction, maintenance, or operation of

a rail facility under this chapter, including the assessment and

remediation of environmental contamination existing in or on a

rail facility.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.0361. CERTAIN FREIGHT RAILROAD PROJECTS. (a) If

sufficient funds from bonds sold to construct the Central Texas

turnpike project or from the Texas mobility fund are available,

the department may, and is strongly encouraged to, use the funds

for engineering, design, grading, and construction necessary to

create a grade-separated freight rail line capable of being

safely traveled by trains operating at not less than 80 miles per

hour in or adjacent to the State Highway 130 corridor.

(b) The department may, and is strongly encouraged to, enter

into negotiations with any Class I railroad concerning building

and operating a freight railroad in or adjacent to the State

Highway 130 corridor. The department may explore with any Class I

railroad the possibility of operating the freight railroad line

in or adjacent to the State Highway 130 corridor as a

revenue-producing partnership that could benefit this state and

the current holders of bonds used in the financing of State

Highway 130.

current published schedule for the construction and completion of

State Highway 130.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.037. CONTRACTS WITH GOVERNMENTAL ENTITIES. This chapter

does not apply to real or personal property, facilities, funding,

projects, operations, construction, or a project plan of a

transportation authority created under Chapter 451, 452, or 460

unless the commission or its designee has signed a written

agreement with the transportation authority specifying the terms

and conditions under which the transportation authority may

participate.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

SUBCHAPTER C. CONTRACTS

Sec. 91.051. AWARDING OF CONTRACTS. Except for a contract

entered into under Section 91.052, 91.054, or 91.102, a contract

made by the department for the construction, maintenance, or

operation of a rail facility must be let by a competitive bidding

procedure in which the contract is awarded to the lowest

responsible bidder that complies with the department's criteria.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

281, Sec. 1.03, eff. June 14, 2005.

Sec. 91.052. AGREEMENTS TO CONSTRUCT, MAINTAIN, AND OPERATE RAIL

FACILITIES. The department may enter into an agreement with a

public entity, including a political subdivision of this state,

to permit the entity, independently or jointly with the

department, to acquire, construct, maintain, or operate a rail

facility or system.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.053. SMALL AND DISADVANTAGED BUSINESSES. (a) The

department shall:

(1) set goals for the award of contracts to small and

disadvantaged businesses and attempt to meet the goals;

(2) attempt to identify small and disadvantaged businesses that

provide or have the potential to provide supplies, materials,

equipment, or services to the department; and

(3) give small and disadvantaged businesses full access to the

department's contract bidding process and other contracting

processes, inform the businesses about those processes, offer the

businesses assistance concerning those processes, and identify

barriers to the businesses' participation in those processes.

(b) This section does not exempt the department from competitive

bidding requirements imposed by other law.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.054. COMPREHENSIVE DEVELOPMENT AGREEMENTS. (a) To the

extent and in the manner that the department may enter into a

comprehensive development agreement under Chapter 223, the

department may enter into a comprehensive development agreement

under this chapter that provides for the financing, design,

acquisition, construction, maintenance, or operation of a rail

facility or system. All provisions of Chapter 223 relating to

comprehensive development agreements apply to comprehensive

development agreements for facilities under this chapter,

including provisions relating to the confidentiality of

information. Claims arising under a comprehensive development

agreement are subject to Section 201.112.

(b) The department may combine in a comprehensive development

agreement under this chapter a rail facility or system and a toll

project as defined by Section 201.001.

development agreement with a private entity under this chapter

that provides for the lease or use of rights-of-way or related

property by the private entity to construct, operate, or maintain

a facility that is unrelated to the operation of the rail

facility or system.

Added by Acts 2005, 79th Leg., Ch.

281, Sec. 1.04, eff. June 14, 2005.

SUBCHAPTER D. FINANCING OF RAIL FACILITIES

Sec. 91.071. FUNDING. (a) Except as provided in Subsection

(b), the department may use any available funds to implement this

chapter, including funds from the state infrastructure bank.

(b) Except for money received from the Texas economic

development bank fund under Section 489.102, Government Code, the

department may not spend money from the general revenue fund to

implement this chapter except pursuant to a line-item

appropriation.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003. Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 8, Sec.

5.01(a), eff. Jan. 11, 2004.

Amended by:

Acts 2005, 79th Leg., Ch.

281, Sec. 1.05, eff. June 14, 2005.

Acts 2007, 80th Leg., R.S., Ch.

1410, Sec. 3, eff. June 15, 2007.

Sec. 91.072. FINANCING OF RAIL FACILITIES AND SYSTEMS. (a) The

commission and the department have the same powers and duties

relating to the financing of a rail facility or a system

established under Section 91.031 as the commission and the

department have under Subchapter E, Chapter 361, relating to the

financing of a turnpike project, including the ability to deposit

the proceeds of bonds or other obligations and to pledge,

encumber, and expend such proceeds and revenues as provided in

Chapter 361.

(b) The powers held by the commission and the department include

the power to:

(1) authorize the issuance of bonds to pay all or part of the

cost of acquiring, constructing, maintaining, or operating a rail

facility or system;

(2) maintain separate accounts for bond proceeds and the

revenues of a rail facility or system, and pledge those revenues

and proceeds to the payment of bonds or other obligations issued

or entered into with respect to the facility or system;

(3) impose fees, rents, and other charges for the use of a rail

facility or system; and

(4) obtain from another source the fees and other revenue

necessary to pay all or part of the principal and interest on

bonds issued under this chapter.

Chapter 361 to:

(1) a turnpike project means a rail facility or system; and

(2) revenue includes a fee, rent, or other usage charge

established under this chapter or other money received under

Sections 91.073 and 91.074.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.073. GRANTS AND LOANS. The department may apply for,

accept, and expend money from grants, loans, or reimbursements

for any purpose of this chapter, including paying for the cost of

the acquisition, construction, maintenance, and operation of a

rail facility or system.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.074. REVENUE. (a) The department may require a person,

including any public or private entity, to pay a fee as a

condition of using any part of a rail facility or system. The

department may not require a person to pay a fee in connection

with the placement, maintenance, or other use of a public utility

facility.

(b) The department shall establish and maintain rents or other

compensation for the use of rail facilities or systems in an

amount that is, together with other revenue of the department

received under this chapter, sufficient to enable the department

to comply with the requirements of Section 91.072.

or part of a rail facility or system or may lease or sell all or

part of a rail facility or system, including all or any part of

the right-of-way adjoining trackwork, for any purpose, including

placing on the adjoining right-of-way a storage or transfer

facility, warehouse, garage, parking facility, telecommunication

line or facility, restaurant, or gas station. Any portion of a

rail facility or system that is used or leased by a private

person under this subsection for a commercial purpose is not

exempt from ad valorem taxation and is subject to local zoning

regulations and building standards.

(d) The department shall not unreasonably discriminate in

deciding who may use any part of a rail facility or system.

(e) All revenue received by the department under this chapter:

(1) shall be deposited to the credit of the state highway fund

and may be used for any purpose authorized by this chapter; and

(2) is exempt from the application of Section 403.095,

Government Code.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

281, Sec. 1.06, eff. June 14, 2005.

Sec. 91.075. PASS-THROUGH FARES. (a) In this section,

"pass-through fare" means:

(1) a per passenger fee or a per passenger mile fee that is

determined by the number of passengers using a passenger rail

facility; or

(2) a fee that is determined based on the number of carloads or

commodity tonnages shipped using a freight rail facility.

(b) The department may enter into an agreement with a public or

private entity that provides for the payment of pass-through

fares to the public or private entity as reimbursement for the

acquisition, design, development, financing, construction,

relocation, maintenance, or operation of a passenger rail

facility or a freight rail facility by the entity.

of making a pass-through fare payment under this section,

including funds from the state infrastructure bank.

(d) The commission may adopt rules necessary to implement this

section. Rules adopted under this subsection may include

criteria for:

(1) determining the amount of pass-through fares to be paid

under this section; and

(2) allocating the risk that ridership on a passenger rail

facility or carloads or commodity tonnages shipped on a freight

rail facility will be higher or lower than the parties to an

agreement under this section anticipated in entering into the

agreement.

Added by Acts 2005, 79th Leg., Ch.

281, Sec. 1.07, eff. June 14, 2005.

SUBCHAPTER E. ACQUISITION AND DISPOSAL OF PROPERTY

Sec. 91.091. ACQUISITION OF REAL PROPERTY. (a) The commission

may authorize the department to acquire in the name of the state

a right-of-way, a property right, or other interest in real

property determined to be necessary or convenient for the

department's acquisition, construction, maintenance, or operation

of rail facilities.

(b) The commission may authorize the department to acquire

property by any method, including purchase and condemnation.

Property may be purchased under any terms determined by the

department to be in the best interest of the state.

for a rail facility even if only one of those potential routes

will ultimately be chosen as the final route.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.092. PROPERTY NECESSARY OR CONVENIENT FOR RAIL

FACILITIES. Property necessary or convenient for the

department's acquisition, construction, maintenance, or operation

of rail facilities includes an interest in real property or a

property right the commission determines is necessary or

convenient to provide:

(1) right-of-way for a location for:

(A) a rail facility; or

(B) the future expansion of a rail facility;

(2) land for mitigation of adverse environmental effects;

(3) buffer zones for scenic or safety purposes; and

(4) revenue for use in acquiring, constructing, maintaining, or

operating a rail facility or system, including revenue received

under a contract described by Section 91.074(c).

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.093. RIGHT OF ENTRY. (a) To acquire property necessary

or convenient for a rail facility, the department may enter any

premises or real property, including a body of water, to make a

survey, geotechnical evaluation, sounding, or examination.

(b) An entry under Subsection (a) or (d) is not:

(1) a trespass; or

(2) an entry under a pending condemnation procedure.

that result from an entry under Subsection (a) or (d).

(d) To ensure the safety and convenience of the public, the

department shall, when entering any real property, water, or

premises on which is located a public utility facility:

(1) comply with applicable industry standard safety codes and

practices; and

(2) notwithstanding Subsection (a), give the owner or operator

of the public utility facility not less than 10 days' notice

before entering the real property, water, or premises.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.094. CONVEYANCE OF PROPERTY BELONGING TO POLITICAL

SUBDIVISION OR PUBLIC AGENCY. The governing body of a

municipality, county, political subdivision, or public agency

may, without advertisement, convey the title to or a right in

property determined to be necessary or convenient by the

department under this subchapter.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.095. DISPOSAL OF PROPERTY. The department may sell,

convey, or otherwise dispose of any rights or other interests in

real property acquired under this subchapter that the commission

determines are no longer needed for department purposes.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

SUBCHAPTER F. OPERATION AND USE OF RAIL FACILITIES

Sec. 91.101. CONTRACTS FOR RAIL TRANSPORTATION SERVICES. The

department may contract with a county or other political

subdivision of the state for the department to provide rail

transportation services on terms agreed to by the parties.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.102. CONTRACTS WITH RAIL OPERATORS. (a) The department

may lease all or part of a rail facility or system to a rail

operator. The department may contract with a rail operator for

the use or operation of all or part of a rail facility or system.

(b) The department shall encourage to the maximum extent

practical the participation of private enterprise in the

operation of rail facilities and systems.

monitoring of a rail operator's service and performance.

(d) The department may enter into an agreement with a rail

operator to sell all or any part of state-owned rail facilities

on terms the department considers to be in the best interest of

the state.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.103. JOINT USE OF RAIL FACILITIES. The department may:

(1) enter into an agreement with a rail operator, public

utility, private utility, communication system, common carrier,

or transportation system for the common use of its facilities,

installations, or properties; and

(2) establish through routes, joint fares, and, subject to

approval of a tariff-regulating body having jurisdiction,

divisions of tariffs.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.104. ROUTINGS. The department may determine routings

for rail facilities acquired, constructed, or operated by the

department under this chapter.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

Sec. 91.105. PLACEMENT OF UTILITY FACILITIES, LINES, AND

EQUIPMENT. (a) A utility has the same right to place its

facilities, lines, or equipment in, over, or across right-of-way

that is part of a state-owned rail facility as the utility has

with respect to the right-of-way of a state highway under Chapter

181, Utilities Code. A utility shall notify the department of the

utility's intention to exercise authority over right-of-way that

is part of state-owned rail facilities.

(b) On receipt of notice under Subsection (a), the department

may designate the location in the right-of-way where the utility

may place its facilities, lines, or equipment.

utility's facilities, lines, or equipment, at the utility's

expense, to allow for the expansion or relocation of rail

facilities owned by the state. A relocation under this subsection

must be accomplished pursuant to Subsections (e)-(j). The

department shall pay for the cost of the relocation. If a utility

facility is replaced, the cost of replacement is limited to an

amount equal to the cost of replacing the facility with a

comparable facility, less the net salvage value of the replaced

facility.

(d) A utility may use and operate a facility required to be

relocated under this section at the new location for the same

period and on the same terms as the utility had the right to do

at the previous location of the facility.

(e) If the department determines that a public utility facility

must be relocated, the utility and the department shall negotiate

in good faith to establish reasonable terms and conditions

concerning the responsibilities of the parties with regard to

sharing of information about the project and the planning and

implementation of any necessary relocation of a public utility

facility.

(f) The department shall use its best efforts to provide an

affected utility with plans and drawings of the project that are

sufficient to enable the utility to develop plans for, and

determine the cost of, the necessary relocation of the public

utility facility. If the department and the affected utility

enter into an agreement after negotiations under Subsection (e),

the terms and conditions of the agreement govern the relocation

of public utility facilities covered by the agreement.

(g) If the department and an affected utility do not enter into

an agreement under Subsection (e), the department shall provide

to the affected utility:

(1) written notice of the department's determination that the

public utility facility must be removed;

(2) a final plan for relocation of the public utility facility;

and

(3) reasonable terms and conditions for an agreement with the

utility for the relocation of the public utility facility.

(h) Not later than the 90th day after the date a utility

receives the notice from the department, including the plan and

agreement terms and conditions under Subsection (g), the utility

shall enter into an agreement with the department that provides

for the relocation.

(i) If the utility fails to enter into an agreement within the

90-day period under Subsection (h), the department may relocate

the public utility facility at the sole cost and expense of the

utility less any reimbursement of costs that would have been

payable to the utility under applicable law. A relocation by the

department under this subsection shall be conducted in full

compliance with applicable law, using standard equipment and

construction practices compatible with the utility's existing

facilities, and in a manner that minimizes disruption of utility

service.

(j) The 90-day period under Subsection (h) may be extended:

(1) by mutual agreement between the department and the utility;

(2) for any period during which the utility is negotiating in

good faith with the department to relocate its facility.

Added by Acts 2003, 78th Leg., ch. 1325, Sec. 4.01, eff. June 21,

2003.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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